Ancillary probate is a legal process that occurs when a deceased person owns property in a state other than their primary state of residence. Since probate is typically handled in the state where the deceased lived, ancillary probate is necessary to address the distribution or transfer of out-of-state property according to that state’s laws.
How Ancillary Probate Works:
- Primary Probate in Domiciliary State:
- The main probate process is initiated in the state where the deceased person lived (the domiciliary state). This is where the executor or personal representative is appointed and the estate is administered.
- Identification of Out-of-State Property:
- If the deceased owned real estate, vehicles, or other tangible assets in another state, those assets cannot be transferred or sold without going through ancillary probate in that state.
- Filing for Ancillary Probate:
- The executor or personal representative must file a petition in the probate court of the state where the out-of-state property is located. This process may require submitting documents such as:
- A certified copy of the will (if there is one).
- A certified copy of the domiciliary probate court’s order appointing the executor or personal representative.
- Other required forms specific to the ancillary probate state.
- The executor or personal representative must file a petition in the probate court of the state where the out-of-state property is located. This process may require submitting documents such as:
- Appointment of a Local Representative:
- In some cases, the court may require the appointment of a local representative (often called an ancillary executor or administrator) to handle the out-of-state assets.
- Transfer or Sale of Property:
- Once ancillary probate is opened, the court oversees the transfer or sale of the property. The proceeds may be distributed to beneficiaries or returned to the primary estate for further distribution.
- Closing Ancillary Probate:
- After the out-of-state property is properly transferred or sold, the ancillary probate process is closed, and the local representative (if appointed) is discharged.
Key Considerations:
- Complexity and Cost: Ancillary probate can add complexity and expense to the probate process, as it involves dealing with multiple courts and potentially hiring local attorneys.
- State-Specific Laws: Each state has its own probate laws, so the requirements and procedures for ancillary probate can vary significantly.
- Avoiding Ancillary Probate: To avoid ancillary probate, individuals can use estate planning tools such as:
- Revocable living trusts (property held in a trust typically avoids probate).
- Joint ownership with rights of survivorship.
- Transfer-on-death deeds for real estate (where allowed).
Ancillary probate ensures that out-of-state property is legally transferred according to the deceased’s wishes or state law, but it can be streamlined with proper estate planning. Consulting an estate planning attorney is recommended to navigate these complexities.
